JUDGMENT 1. - By his judgment dated October 28, 1977 the learned Sessions Judge, Merta convicted and sentenced the accused Gulab Chand as under:- S. No. Offence u/s Sentence awarded 1. 458, I.P.C. Four years rigorous imprisonment with a fine of Rs. 1000/-, in default of the payment of fine to further undergo one month's like imprisonment. 2. 354, I.P.C. One year's rigorous imprisonment. 3. 324, I.P.C. Two years rigorous imprisonment. 2. Substantive sentence were directed to run concurrently. The accused has come up in appeal to challenge his conviction and sentence. 3. Briefly stated, the prosecution case is that P. W 3 Bashiruddin was posted as a Guard in Northern Railway at Merta Road in 1976. He was living with his wife Smt. Safina (P. W. 1) and minor children in Railway quarter No. N. T. 72-C situated in loco colony. In the evening of June 25, 1977 he and his wife after taking meals retired to sleep. He was sleeping in his drawing room shown by letter F in site plan Ex. P. 1 whereas his wife Smt. Safina and his two minor daughters were sleeping in the inner Varandah shown by letter in site plan EX. P 1. Smt. Safina was nearly 20 years of age at that time. The accused was a cleaner in railway in Merta Road and used to discharge the duties of call-man to communicate the message of duty to drivers and fireman. At about 11-30 P.M., PW 1 Smt. Safina hearing some Aahat' awoke and found the accused standing near her cot with a knife in his hand He caught the cheeks of Smt. Safina. She pushed him and raised cries. Hearing her cries, her husband Bashiruddin (PW 3) came out from his room. He challenged the accused. The accused tried to escape and Bashiruddin attempted to catch hold of him. Bashiruddin caught the accused by his Baniyan but the accused managed to run away forcibly. In that process, a piece of Baniyan of the accused remained in the hand of Bashiruddin. When the accused found it difficult to escape, he took out the knife and aimed to strike a blow in the abdomen of Bashiruddin. Bashiruddin took a turn to escape and the knife-blow fell on his left hip, causing injury on that part Bashiruddin fell down. He raised cries. When the accused found it difficult to escape, he took out the knife and aimed to strike a blow in the abdomen of Bashiruddin. Bashiruddin took a turn to escape and the knife-blow fell on his left hip, causing injury on that part Bashiruddin fell down. He raised cries. Hearing his cries, his neighboured PW 6 Abdul Sattar and PW 7 Saburuddin came there. They tried to catch hold of the accused but seeing a naked in his hand, could not dare to do so. The accused thus managed to run away. There was bleeding from the wound of Bashiruddin. Somebody immediately went to the railway doctor Shri Hanuman Singh (PW 4) and brought him there on the spot. He gave the First Aid Treatment to Bashiruddin. A report Ex. P of the occurrence was drawn up and was presented to Police Station, Merta Road at about 00 30 hours on May 26, 1976. The police registered a case and proceeded with investigation. Bashiruddin was next taken to the Civil Hospital, Merta City. His injury was examined by Dr. Tulsaram (PW 5) and he found the following:- 1. Incised wound 31/2 x muscle deep (1") on the upper and outer part of left buttock near iliac crest transversely oblique having maximum depth in the central part of the wound. Margins of the wound were clean cut and surrounding tissues were not contused. Clotted blood-present in the wound. The wound was already dressed by Medical Officer Railways, Merta Read, as a first aid measure to prevent bleeding. The wound was closed In layers and applied, by me. The muscle and fascia were cut upto the deep of bone near iliac crest which was stitched by cat gut. The injury was simple in nature and produced by sharp object". The deration of the injury was within 12 hours at the time of examination. The injury was caused by some sharp edged weapon like knife. The injury report is Ex. P 8. The accused was arrested. While running away, the accused had dropped the knife in a drain out-side the house of Bashiruddin. It was noticed by PW 1 Smt Safina who took it out. It was produced by her before the police. The injury was caused by some sharp edged weapon like knife. The injury report is Ex. P 8. The accused was arrested. While running away, the accused had dropped the knife in a drain out-side the house of Bashiruddin. It was noticed by PW 1 Smt Safina who took it out. It was produced by her before the police. On the completion of investigation, the police presented a challan against the accused in the Court of Additional Munsif and Judicial Magistrate, Merta City, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under sections 458, 354, 307 and 326, I.P.C. against the accused, to which he pleaded not guilty and demanded the trial. According to the accused, he was falsely implicated. It was also alleged by him that the police have suppressed the real facts. In this statement under section 313, Cr. PC he that at about 9-30 P.M. on the day of occurrence he was going to his quarter. In his way when he came out-side the quarter of Bashiruddin, Bashiruddin came out and over-powered him. There was a scuffle between the two. He (accused) tried to extricate himself from the clutches of Bashiruddin. In that process he gave a push to Bashiruddin. Bashiruddin fell on a drum lying near by. Bashiruddin, thus, sustained an injury on his hip. In support of its case, the prosecution examined 11 witnesses and filed some documents. In defence, the accused examined four witnesses. On the conclusion of trial, the learned Sessions Judge found the prosecution story substantially true against the accused. He found no merit in the defence. He was, however, of the opinion that no case under sections 307 and 326, IPC was made out. The accused was consequently convicted and sentenced as mentioned at the very outset. Aggrieved against his conviction and sentence, the accused has taken this appeal. I have heard the learned counsel for the appellant and the learned Pubic Prosecutor. I have also gone through the case file carefully. 4. In assailing the conviction of the accused, the learned counsel appearing for the appellant vehemently contended that there was no reliable evidence to support the prosecution story. The story by PW 1 Smt. Safina and her husband PW 3 Bashiruddin is wholly incredible and also improbable. I have also gone through the case file carefully. 4. In assailing the conviction of the accused, the learned counsel appearing for the appellant vehemently contended that there was no reliable evidence to support the prosecution story. The story by PW 1 Smt. Safina and her husband PW 3 Bashiruddin is wholly incredible and also improbable. PW 6 Abdul Sattar and PW 7 Saburuddin were falsely introduced who could not be present on the spot. Their claim to have seen the accused running away is totally false. The grievance of the learned counsel is that the evidence of these four witnesses was wrongly taken as true against the accused. It was further argued by Mr. Singhvi that the counter version o the incident given by the accused was wrongly rejected by the Court below. In reply, the learned Public Prosecutor supported the finding of the Court below and submitted that these four witnesses had no bias or grudge against the accused to falsely implicate him. The evidence of these witnesses was properly appreciated and evaluated by Court below. There is no infirmity in their evidence so as to render the prosecution story suspicious or unworthy of belief. I have taken the respective submissions into consideration. 5. As the contentions raised mainly relate to the facts, it would be proper to briefly read the relevant evidence. The main witnesses speaking about the occurrence are PW Smt. Safina and her husband PW 3 Bashiruddin. PW 1 Smt. Safina deposed that she was living with her husband in a railway quarter situate in the loco colony of Railway Station, Merta Road She has three minor children, the eldest being of eight years. At about 9.00 P.M on the day of occurrence, they took meals and retired to sleep. At about 10.00 P.M., there was a storm and her husband went to sleep in the drawing room. She and her two minor daughters were sleeping in the inner Varandah (shown by mark J in the site plan Ex. P 1). At about 11.30 , P.M. she hearing some noise woke up and saw the accused leaning on her with a knife in his hand. She got frightened. The accused caught her cheeks to raise her. She pushed him aside and raised cries. Hearing her cries, her husband Bashiruddin (PW 3) came out of the room. P 1). At about 11.30 , P.M. she hearing some noise woke up and saw the accused leaning on her with a knife in his hand. She got frightened. The accused caught her cheeks to raise her. She pushed him aside and raised cries. Hearing her cries, her husband Bashiruddin (PW 3) came out of the room. Seeing her husband, the accused threatened to kill him in case he raised the cries, Saying so, the accused tried to escape. Bashiruddin attempted to catch hold of the accused. In the scuffle Bashiruddin caught the Baniyan of the accused. The accused tried to wriggle out and in that process, his Baniyan got torn. A rag of the torn Baniyan remained in the hand of Bashiruddin. The accused aimed to strike a blow with his knife in the abdomen of Bashiruddin, Bashiruddin moved to save himself and the blow of the knife fell on his left hip. There was profuse bleeding from his wound. The accused, thus, managed to run away. PW 3 Bashiruddin deposed that after taking meals, he went to sleep at about 9.00 P.M. As there was storm in that night, he slept in his drawing room. His wife Smt. Safina and the two minor children slept in the inner Varandah. At about 11.30 P. M., he heard the cries of his wife Smt. Safina. He came out and saw the accused standing in the inner Varandah near his wife. The accused threatened to kill him in case he raised the cries, and collected the people. The accused then tried to run away but he (witness) tried to catch him. He caught the Baniyan of the accused. The accused tried to and in that process, his Baniyan got torn and a rag of it remained in his (witness) hand. The accused thereafter aimed to strike a blow of his knife in his (witness) abdomen. He took a turn to save himself and the blow of knife of the accused fell on his left hip. He fell down. The accused opened the back door to run away. Meanwhile the prosecution witnesses Saburuddin and Abdul Sattar came there. They saw the accused running away from the back door. They could not catch him as they got frightened because the accused was having an open knife with him. 6. He fell down. The accused opened the back door to run away. Meanwhile the prosecution witnesses Saburuddin and Abdul Sattar came there. They saw the accused running away from the back door. They could not catch him as they got frightened because the accused was having an open knife with him. 6. Both these witnesses were cross-examined at length but nothing could be elicited from them which may make their testimony unworthy of belief or incredible. Nothing has been brought on record from the side of the accused to Show or suggest that they had any enmity with him or that the relations between them were strained. Mr. Singhvi could not point out any infirmity in the statement of these two witnesses which may induce me to disbelieve what they testified on oath. The Court below accepted the testimony of these two witnesses as true. I find no good and cogent reasons to take a contrary view from that taken by the Court below. I am unable to conceive that these two witnesses, who are husband and wife, would invent a false case against accused for no rhyme or reason. 7. PW 6 Abdul Sattar and PW 7 Saburuddin are the witnesses, who on hearing the cries, reached the place of occurrence and saw the accused running away from the complainants house. These witnesses stated that their quarters are situate in the same locality not far away from the complainants house. At about 11.30 PM. on the day of incident, they heard the cries of Bashiruddin (PW 3) from his quarter and rushed to side. When they reached there, they found the accused in the Courtyard. He had a knife in his hand. They tried to catch him but seeing a knife in his hand, they got frightened and could not dare to catch him. The accused managed to run away. They further stated that they saw PW 3 Bashiruddin lying down on the floor with a wound on his left hip, from which blood was oozing out. Bashiruddin narrated the incident to them, again, nothing could be elicited from these two witnesses in cross-examination which may make their testimony incredible. These two witness es have no grudge against the accused. It is difficult to imagine they would falsely depose against the accused merely because they belong to the community of the complainant. 8. Bashiruddin narrated the incident to them, again, nothing could be elicited from these two witnesses in cross-examination which may make their testimony incredible. These two witness es have no grudge against the accused. It is difficult to imagine they would falsely depose against the accused merely because they belong to the community of the complainant. 8. There is then the promptness in lodging the First Information Report. The FIR Ex. P 6 of the occurrence was lodged at about 00.30 hours on May 26, 1977 that is to say, within an hour of the incident. In Ex. P 6, the entire incident has been narrated in full. Though it has not been mentioned in it that the accused caught the cheeks of Smt. Safina (PW I) it has been mentioned in it that the accused tried to molest her PATNI KO CHHODNE KI KOSIS KI". As such the omission to touch the cheeks in Ex. P 6 is not of much significance. The promptness in lodging the FIR affords a material corroboration to the prosecution story and the test is money of all the above four witnesses. The names of these two witnesses has also been mentioned in Ex P 6. This eliminates the false introduction of these two witnesses. 9. It was vehemently contended by the learned counsel that counter version put in the defence by the accused has been wrongly rejected. The counter version alleged by the accused is that at about 9.30 PM. on the day of incident, he was in his quarter. When he happened to pass out side the quarter of Bashiruddin, Bashiruddin came out and caught hold of him. Both of them grappled with each other. The accused, in order to extricate himself, gave a push to Bashiruddin. Bashiruddin fell on the drums and thus sustained an injury on his left hip. He has examined DW 1 Ram Narain and DW 2 Kusalram in support of his version. The learned Sessions Judge found no merit in the defence version put forward by the accused. In my opinion, the approach of the learned Sessions Judge is just and proper and calls for no interference. It has been suggested by the defence witnesses as to how and for what reason the quarrel took place between the accused and Bashiruddin. The learned Sessions Judge found no merit in the defence version put forward by the accused. In my opinion, the approach of the learned Sessions Judge is just and proper and calls for no interference. It has been suggested by the defence witnesses as to how and for what reason the quarrel took place between the accused and Bashiruddin. It is very easy to manufacture such type of defence version and to procure witnesses in support of it. There are persons who freely lent their services as witnesses and DW 1 Ram Narain as well as DW 2 Kusalaram belong to that category. The evidence of these two defence witnesses is not sufficient to discard the direct evidence of PW 1 Smt. Safina. PW 3 Bashiruddin, PW 6 Abdul Sattar and PW 7 Sabiruddin. 10. There is thus no force in contention of the learned counsel that the accused was convicted on incredible evidence. The contention holds no ground. 11. It was next contended that the offence made out does not fall within the ambit of Section 458, IPC. According to the learned counsel, the offence made out from the entry of the accused in the complainants house amounts to that under section 457, IPC. The contention has no force. The accused committed lurking house trespass by secretly entering the complainants house. He had a knife with him. He had, thus, made preparation for causing hurt to any person. As such the offence is covered by section 458. IPC. As regards the offence under section 324 IPC, there is no dispute as per medical evidence, an incised wound caused by some sharp weapon was found on the hip of Bashiruddin. The learned Sessions Judge as already reduced the offence from that under section 326 and 307 to 324, IPC. In respect of the offence under section 354, IPC, there is the testimony of PW 1 Smt. Safina. She deposed that the accused came and touched her cheeks. This act of the accused clearly shows that he used criminal force to Smt. Safina, intending to out rage her modesty The accused was, thus, rightly convicted under section 458, 324 and 354, IPC. 12. The last contention of the learned counsel is that the accused was a young man at the time of the commission of the offence. Even at the time of his conviction, his age was not above 22 years. 12. The last contention of the learned counsel is that the accused was a young man at the time of the commission of the offence. Even at the time of his conviction, his age was not above 22 years. He has already remained in jail from 26.5.76. to 7.6.76. and 28.4.77. to 15.5.78., that is to say seven months and ten days. The offence was committed long back in 1976. was submitted that it would not be proper to resend him to jail after an interval of long eight years. A prayer was made that a lenient view should be taken in the matter of sentence. The learned Public Prosecutor has opposed the submission and submitted that looking to the manner in which the offences were committed, the accused is not entitled to any leniency. 13. Admittedly, the accused was nearly 22 years in age at the time of the commission of the offence. No previous conviction stand at his discredit. He has already remained in jail for seven months and ten days. In these circumstances it would not be proper to resend him in jail after a long lapse of eight years. It would not be improper to reduce his sentence to the period already undergone. 14. In the result, the appeal of accused Gulabchand is partly allowed. His conviction under section 458, 354 and 324, IPC is maintained. But the term of sentence awarded under each section is reduce to the period already undergone by him. The sentence of fine is maintained. He is allowed one months time to deposit the fine, failing which the learned Sessions Judge will proceed against him in accordance with law. Since he is on bail, he need not surrender. His bail bonds shall stand cancelled.Appeal partly allowed. *******